MOLSKI v. MANDARIN TOUCH RESTAURANT
359 F.Supp.2d 924 (2005)
United States District Court, C.D. California.
March 8, 2005.
The 223 separate complaints are almost identical. Each of the 223 complaints alleges the same five causes of action: a federal ADA claim, and the same four claims under California state law.3 The damages requested are also identical. Indeed, other than superficial alteration of the facts and names, the complaints are textually identical, often down to the typos. A prominent common thread among the complaints is the allegation of physical injuries. In each and every complaint, Frankovich Group clients claim to suffer a
bodily injury as a result of encountering an architectural barrier. Sometimes the claim of bodily injury is general, but more often, it is specific. For example, in 178 of the 223 cases, or 80% of the cases, the plaintiff claims an injury to his or her upper extremities. In 33 of the 223 cases, or 15% of the cases, the plaintiff claims to have scraped his or her hand or knuckles, generally when passing through a door which was too narrow. It is also common for Frankovich Group clients to make multiple claims for injuries purportedly sustained on the same day. In the Court's Order Declaring Jarek Molski a Vexatious Litigant, it recounted the events of May 20, 2003. 347 F.Supp.2d at 864-65. That day, Molski made nearly identical claims of injury at three separate businesses. Now, after a review of all 223 complaints, the Court is in a position to supplement that record.
The following day, May 21, 2003, Molski claims to have been injured at four separate businesses. In Molski v. Longhouse Restaurant, C04-1492 (N.D.Cal.2004), Molski alleges he injured his upper extremities trying to transfer himself onto a toilet at the Longhouse Restaurant in Gilroy. In Molski v. King & I Investment Group, C04-1493 (N.D.Cal.2004), he claims to have injured his upper extremities ascending steps at the King & I Thai Cuisine restaurant in Morgan Hill. In Molski v. Morgan Hill 76, C04-1945 (N.D.Cal.2004), he claims to have injured his upper extremities going over a step at the Morgan Hill 76 gas station. Finally, in Molski v. La Rochelle, C04-1985 (N.D.Cal.2004), Molski alleges he scraped his hands when he became wedged in the bathroom door at the La Rochelle winery in San Jose.
The day after that, May 22, 2003, Molski again claims that he was injured at four separate business establishments. In Molski v. Pump N Go, C04-1854 (N.D.Cal.2004), Molski claims to have injured his upper extremities transferring himself to the toilet at the Pump N Go gas station in Morgan Hill. In Molski v. The Cove, C04-1880 (N.D.Cal.2004), he claims to have injured his upper extremities when he tried to transfer himself onto a toilet that had only one grab bar at The Cove restaurant in Gilroy. In Molski v. Casa Medina, C04-1947 (N.D.Cal.2004), Molski claims to have injured himself while negotiating architectural barriers at the Casa Medina restaurant in San Juan Bautista. Finally, in Molski v. Albertson's, Inc., C04-1984 (N.D.Cal.2004), Molski again claims to have injured himself when negotiating architectural barriers at the Albertson's market in Morgan Hill, California.
And the day after that, May 23, 2003, Molski claims he was injured at five separate businesses that were separated from one another by a total distance of more than 140 miles, and which are 160 to 300 miles from his home in Woodland Hills. In Molski v. Cloninger Cellars, C04-1853 (N.D.Cal.2004), Molski claims to have injured his upper extremities traversing rocks in a parking lot at the Cloninger Cellars winery in Gonzales. In Molski v. Toro Petroleum, C04-1941 (N.D.Cal.2004), he claims to have injured his upper extremities transferring himself onto a toilet at the Gonzales Unocal 76 gas station in Gonzales. In Molski v. Roy's Drive-In, C04-1983 (N.D.Cal.2004), he claims to have injured his shoulders transferring himself onto the toilet, and also when he wheeled off the sidewalk, at Roy's Drive-In restaurant in Salinas. In Molski v. Di Fronzo Properties, CV 04-3122 (C.D.Cal.2004), he claims to have injured his upper extremities overcoming a two-to-three inch threshold at Zadok's Coffee House in Pismo Beach. Finally, in Molski v. Cracked Crab Restaurant, CV 04-3544 (C.D. Cal 2004), Molski claims to have injured his upper extremities transferring himself
onto a toilet at the Cracked Crab Restaurant in Pismo Beach. In total, Molski filed 16 federal lawsuits for injuries purportedly sustained over this four-day period of time. Expanding that window slightly, the record reveals that Molski filed 26 lawsuits for injuries allegedly sustained between May 16 and May 23, 2003 — with Molski purportedly sustaining at least one injury on each day during that ten-day stretch. This period was far from an isolated incident. The Court's review of the complaints filed in 2004 alone reveals that on 37 separate occasions, Molski claimed to be injured twice or more on the same day. On 19 separate occasions, he claimed to be injured three or more times in one day. And on nine separate occasions, Molski filed four or more federal lawsuits for injuries allegedly sustained on the same day.
1. A hearing was held on these Orders to Show Cause on February 7, 2005, the Honorable Edward Rafeedie, presiding. At that hearing, the Court announced its tentative ruling, including the findings of fact and conclusions of law that form the basis of this order. Despite requesting (and receiving) a continuance, purportedly to allow counsel time to prepare for that hearing, the Plaintiffs did not challenge any of the Courts tentative findings or conclusions, and did not present any oral argument.
2. The Court has obtained and read the 223 complaints that it that it was able to recover. A handful of complaints filed in the Northern and Central Districts were unavailable for various reasons. The Court also identified, but was unable to obtain, at least 11 complaints filed in the Eastern District.
3. Those claims are 1) Violation of California Civil Code § 54, et seq., The California Disabled Persons Act ("CDPA"); 2) Violation of California Health & Safety Code § 19955, et seq., Denial of Accessible Sanitary Facilities; 3) Violation of California Civil Code § 51, et seq., The Unruh Civil Rights Act; and 4) Violation of California Business & Professions Code § 17200, et seq., Unfair Business Practices.
4. The Court has attached a copy of the letter sent to Kathy McInerney as an appendix to this order. When citing or quoting the letter, this order refers specifically to that letter. The record also contains the letters that The Frankovich Group sent to the other defendants in Mandarin Touch and Yang Chow. For all relevant purposes, the letters are identical. [Editor's Note: The Appendix is not included in this publication].
5. Pursuant to C.D. Cal. Local Rule 83-3.1.2, the Model Rules of Professional Conduct of the American Bar Association may be considered as guidance when disciplining attorneys.
6. Although this Court has focused on three specific violations of the rule, the letter itself recognizes that it has actually given advice about seven different matters. See McInerney Letter at 5 ("We find all to [sic] often that many defendants are not properly advised as to their position in the litigation, insurance coverage issues, injunctive relief sought, damages, the tactics of insurance defense attorneys, attorneys' fees, and the use of an early mediation/settlement conference to resolve the matter."). As the Model Rules and relevant case law make clear, it is not the place of adverse counsel to advise an unrepresented defendant on these matters.
7. There should be no doubt that advising a party against retaining counsel constitutes legal advice under the Rule. The Model Rules specifically state that an attorney "shall not give legal advice to an unrepresented person, other than the advice to secure counsel." ABA Model Rules of Prof'l Conduct 4.3 (emphasis added). Thus, by its very words, the Rule recognizes that a recommendation to secure counsel qualifies as advice. It necessarily follows that advising an unrepresented party against retaining counsel constitutes legal advice as well.
8. Similar contradictions occur in complaints filed on behalf of other Frankovich Group clients. For example, in Jankey v. Mister D's Liquor Market, CV 04-9112 (C.D.Cal.2004), Jankey was unable to access the sidewalk in front of a liquor store due to a lack of ramps or cut curbs. Jankey blew his horn, at which time an employee came out of the store and assisted him with his order. Complaint at ¶ 22. Jankey noted other violations before leaving without attempting to enter the store. Despite a lack of any physical contact with an architectural barrier, Jankey then makes an identical claim of bodily injury "including, but not limited to, fatigue, stress, strain and pain in wheeling and attempting to and/or transferring." Id. at ¶ 28.
9. Further proof of canned allegations comes from a letter that The Frankovich Group sends to prospective clients, which outlines its litigation philosophy. See Ex. B to Declaration of Thomas E. Frankovich. The letter informs prospective clients that "[y]ou should also know that we use the terms `emotional distress' and `negligence as we prosecute your case. Although we use those terms, we do not file a cause of action based upon negligence, the negligent infliction of emotional distress, or the intentional infliction of emotional distress." The Frankovich Group made good on its pledge. In every case filed in 2004, Frankovich Group clients allege emotional distress and negligence without bringing a cause of action for negligence, or the negligent or intentional infliction of emotional distress. But how could The Frankovich Group have known this in advance? Surely it was likely that in (at least) one of the 223 cases, a client would be injured as the result of negligence, or not suffer emotional distress. That fact that 223 separate cases unfolded exactly as described in advance suggests that the identical allegations of emotional distress were contrived.
10. The requested damages accumulate during this time despite a lack of any notice to the defendants, who presumably would have some interest in mitigating their liability by performing the repairs immediately.
11. Moreover, it is unclear whether the sort of daily damages requested are available under California law. California courts read a statute against permitting cumulative daily damages unless the statute specifically authorizes them. See Hale v. Morgan,22 Cal.3d 388, 401, 149 Cal.Rptr. 375, 584 P.2d 512 (1978)("Uniformly, we have looked with disfavor on ever-mounting penalties and have narrowly construed the statutes which either require or permit them."). Neither the Unruh Act nor the CDPA specifically authorize daily damages, and thus, it is questionable whether such damages would be permissible under California law. 12. On November 18, 2004, a jury, finding no violations of the ADA, unanimously ruled in favor of the Defendants.
13. This is implicitly pointed out in the aforementioned letter which is sent to all defendants. The letter notes that if the matter does not settle quickly, the cost of litigation will "start[] to rise, or as some may say, skyrocket."
14. Such an understanding is even reflected in some of the settlement agreements which the Plaintiffs lodged with the Court. See, e.g., Declaration of Thomas E. Frankovich, Ex. 61 (Settlement Agreement for Molski v. Valencia Lanes, Inc., CV 03-5455 (C.D.Cal.2003)) at ¶ 3("It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment made is not to be construed as an admission of liability on the part of Releasees, and each of them, and that said Releasees deny liability therefor and make settlement reflected herein merely to avoid litigation and buy their peace.")(emphasis added).
15. There is no evidence that proves that the barriers alleged actually exist, and if they do, whether their removal would be "readily achievable." None of the 65 settlement agreements which the Plaintiffs submitted to the Court contains an admission of liability, and Molski lost the only case he ever took to trial (with the jury making a special verdict finding that no barriers existed). The Plaintiffs almost never need to prove their allegations of discrimination because considerable disincentives discourage defendants from litigating a matter on its merits.